Settlement_Agreement.pdf

Stipulation No. 2:14-cv-01158-JLR

U.S. Department of Justice Environment & Natural Resources Division c/o U.S. Attorney’s Office, 1000 SW Third Avenue Portland, OR 97204-2902

THE HONORABLE JAMES L. ROBART

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

AMERICAN RIVERS,

Plaintiff, v.

U.S. ARMY CORPS OF ENGINEERS,

Defendant.

No. 2:14-CV-01158-JLR

STIPULATED SETTLEMENT

AGREEMENT AND ORDER

The Plaintiff, American Rivers (“Plaintiff”), and the United States Army Corps of

Engineers (“Corps” or “Federal Defendant”), by and through their undersigned counsel, state as follows:

WHEREAS, Plaintiffs filed a Complaint on July 31, 2014, Dkt. No. 1, alleging that: (a) the Corps failed to complete required consultation under Section 7 of the Endangered Species

Act (“ESA”), 16 U.S.C. § 1536(a)(2) for its ongoing operation and maintenance of the Mud

Mountain Dam Project on the White River in Washington and; (b) the Corps’ continued

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U.S. Department of Justice Environment & Natural Resources Division operation of the Mud Mountain Dam Project results in unauthorized take of listed salmonids under Section 9 of the ESA, 16 U.S.C. § 1538;

WHEREAS the National Marine Fisheries Service (“NMFS”) issued a biological opinion on the Corps’ operation and maintenance of the Mud Mountain Dam Project on October 3, 2014 finding that the Corps’ proposed continued operation and maintenance of its Mud Mountain Dam

Project, including the associated Buckley fish trap facilities, would jeopardize the continued existence of Puget Sound Chinook salmon and Puget Sound steelhead;

WHEREAS the biological opinion included a Reasonable and Prudent Alternative

(“RPA”) requiring the Corps to, among other things, design, construct and operate a new adult fish barrier, trapping, sorting, and passage facilities (referred to herein as the “Fish Passage

Project”) to replace the White River diversion structure and current trap and haul facility not later than 2020;

WHEREAS the RPA also requires repairs to the White River Diversion dam apron, requirements for operation of the Buckley fish trap facility, and maximizing the use of the 23-foot tunnel to achieve 95% smolt passage survival through Mud Mountain dam from March 1 through June 30 each year;

WHEREAS the Corps has accomplished certain actions included in the biological opinion’s RPA by completing repairs to the existing barrier apron at the White River diversion dam (RPA Action item 2); completed a Letter Report on April 27, 2015, with approval of plans and cost-estimate on May 11, 2015 for design, construction and operation of the Fish Passage

Project; and implemented modified project operations to minimize juvenile passage through the

9 foot tunnel beginning in 2014; (RPA Action item1);

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U.S. Department of Justice Environment & Natural Resources Division

WHEREAS Plaintiff and Federal Defendant acknowledge that the Fish Passage Project is subject to congressional funding sufficient to support completion of the Project;

WHEREAS Plaintiff and Federal Defendant, through their authorized representatives, without any admission of legal fault or error, and without final adjudication of the issues of fact or law with respect to Plaintiff’s claims, have reached a settlement resolving this action;

WHEREAS the Plaintiff and Federal Defendant agree that settlement of this action as set forth below is in the public interest and is an appropriate way to resolve this dispute.

THEREFORE, the parties agree as follows:

I. BENCHMARKS AND REPORTING

1. To ensure that the Fish Passage Project is operational no later than December 31, 2020 as required by the RPA in the National Marine Fisheries Service’s October 3, 2014

Biological Opinion, the Corps agrees to the following benchmarks of progress:

(a) December 4, 2015 -

1. Update the Fish Passage Project, Project Management Plan;

2. Initiate in-house work as follows:

i. The Corps’ Seattle District will begin design work for roads and levees, and fishway, to include water intake, ladder and entrances, and pre-sort pools;

ii. The Corps’ Seattle District will begin acquisition of an Architect Engineer (AE) contract

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U.S. Department of Justice Environment & Natural Resources Division for haul facility, to include handling, sorting, and hauling;

iii. The Corps’ Seattle District will begin real estate acquisition efforts;

iv. The Corps’ Portland District will begin design work for the barrier structure; and

v. The Corps’ Engineering Research

Development Center will begin development of a physical model.

(b) March 1, 2016 – complete analysis of barrier gate configuration for integration into the physical model;

(c) March 3, 2016 -

1. Complete the geo-tech investigations for use in the design of the barrier foundation; and

2. Complete the project site surveys.

(d) March 31, 2016 – award Architect Engineer (AE) design contract(s) for the Fish Passage Project haul facility;

(e) July 1, 2016 – complete construction of the physical model of the project;

(f) October 15, 2016 – initiate construction phase (as reflected in the Corps’

Mud Mountain ROCASOD);

(g) January 31, 2017- award construction contract for roads and levees;

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U.S. Department of Justice Environment & Natural Resources Division

(h) March 1, 2017 – completion of “60% design” review for Fish Passage

Project;

(i) July 1, 2017 – design of Fish Passage Project (Design Document Report or DDR) complete;

(j) December 1, 2017 – award construction contract for the Fish Passage

Project;

(k) March 1, 2018 – construction for the Fish Passage Project underway;

(l) December 31, 2020 –Fish Passage Project is operational.

2. The Corps shall continue to work with Cascade Water Alliance and coordinate with NMFS, the Muckleshoot and Puyallup Tribes, and the State of Washington Department of

Fish and Wildlife to perform necessary apron or diversion structure repairs required after August, 2015 as needed, and will include information on these repairs in each status report referenced in

Section II. The parties agree that use of the rock chute from Cascade Water Alliance’s diversion flume to return water to the White River downstream of the barrier to possibly minimize take of listed species during such future interim repairs may be discussed as a part of this coordination process.

3. During the period of September 30, 2015 through March 1, 2017, the Corps will also include in each biannual status report required in Section II, a progress update on each of the following four topics: (a) surveys and geotechnical work; (b) access roads and levees; (c) barrier design, including development of mechanical, electrical, and structural engineering plans; and

(d) fishway and haul facility design, including development of mechanical, electrical, and structural engineering plans.

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U.S. Department of Justice Environment & Natural Resources Division

4. In each October status report, the Corps shall provide the current estimate of total funding, not limited to new appropriations, needed to advance progress on each RPA action in accordance with the implementation schedule for the following fiscal year and in consideration of the progress to date.

5. In each March status report, the Corps shall report whether the Administration budget to Congress included funds for the following fiscal year to implement the RPA actions, including completion of an operational Fish Passage Project by December 31, 2020.

II. REPORTING

6. The Corps agrees to complete and provide to American Rivers biannual reports describing its compliance with the benchmarks outlined in ¶¶ 1-5 no later than March 31 and

October 31of each year beginning in March 2016, and then through annual reports beginning in

March 2018, provided that construction of the Fish Passage Project has begun by that date.

7. In addition, the Corps agrees to conduct an annual project status briefing. The

Corps will invite stakeholders, including, but not limited to American Rivers, the Muckleshoot

Tribe, the Puyallup Tribe, the State of Washington Department of Fish and Wildlife, and the

National Marine Fisheries Service, to attend this briefing. Plaintiff understands and agrees that any government or individual stakeholder’s participation in this meeting is voluntary and that by agreeing to invite these stakeholders, the Corps is neither obligating them to attend, nor making any representation to Plaintiff about their attendance.

8. In addition, subject to compliance with all Federal law, regulations, and guidance, the Corps agrees to notify American Rivers (in writing and through counsel) promptly once it knows or projects that any of the above benchmarks has been or is likely to be missed in the

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U.S. Department of Justice Environment & Natural Resources Division intervals between the biannual reports. American Rivers shall notify the Corps (in writing and through counsel) if it believes that a benchmark or other deadline contained here or in the biological opinion has not been met. No failure or delay on American Rivers’ part to notify the

Corps of such failure to meet a benchmark or deadline shall operate as a waiver of any right or remedy or to invoke the Dispute Resolution procedures in Section III or as a waiver of any right to notify the Corps of any failure to meet a subsequent benchmark or deadline.

9. Notification under ¶¶ 6-8 of a dispute as to whether a benchmark has been met triggers the provisions of Section III.

III. DISPUTE RESOLUTION AND REMEDIES

10. The Order entering this Stipulation stays this case until the beginning of in-ground construction of the Fish Passage Project. Pursuant to Federal Rule of Civil Procedure

41(a)(2), upon the beginning of in-ground construction, the parties will jointly notify the Court and within 30 days submit a stipulated motion for dismissal without prejudice.

11. Upon either party giving notice under Section II of a missed benchmark or other deadline identified herein or in the biological opinion, the parties will meet and confer within 14 calendar days to initiate a good faith effort to discuss and seek to resolve any issues arising from the delay. This dispute resolution conference(s) may take place either telephonically or in-person, at the parties’ agreement. If the parties are unable to reach agreement after the initial meet and confer, the Corps shall confer with NMFS to determine whether any additional harm to

ESA-listed fish will occur as a result, and if so, discuss proposals to minimize any ongoing harm to ESA-listed fish that may be caused by the delay. The measures discussed with NMFS may include, but are not limited to, exploring short-term trap and haul improvements – especially in

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U.S. Department of Justice Environment & Natural Resources Division odd-numbered pink salmon years – to increase fish collection and transport. The parties agree to meet within 14 days of the first meet and confer (unless agreed to otherwise), and the Corps will be prepared at this conference(s) to discuss proposals coordinated with NMFS, if any, to minimize any ongoing harm to ESA-listed fish that are a result of the delay in completion of an operational Fish Passage Project by December 2020.

12. If the parties are unable to resolve a dispute arising before the expiration of the stay in ¶ 10 within 30 days, the stay imposed by this Stipulation shall be lifted and Plaintiff’s sole remedy is to pursue the claims for relief in its complaint (or an amended or supplemental complaint), which may include seeking immediate injunctive relief on those claims, in accordance with this Court’s local rules or an alternative mutually agreed schedule. If the parties are unable to resolve a dispute arising after dismissal of this case as provided in ¶ 10 within 30 days, Plaintiff’s sole remedy is to file a new complaint. Federal Defendant reserves all objections and defenses if Plaintiff seeks immediate relief and/or files a new complaint.

13. The Corps agrees that Plaintiff is entitled to reimbursement of reasonable attorneys’ fees and costs, as provided in 16 U.S.C. § 1540(g) in the amount of $40,919.27. No provision of this Stipulation shall be interpreted as constituting a commitment or requirement that the United

States is obligated to pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other provision of law. No provision of this Stipulation shall be interpreted as constituting a commitment or requirement that the Federal Defendant take actions in contravention of the ESA, APA, or any other law or regulation, either substantive or procedural.

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U.S. Department of Justice Environment & Natural Resources Division

14. Upon approval of this Stipulation by the Court, this Stipulation shall apply to and be binding upon the Plaintiffs and Federal Defendant and anyone acting on their behalf, including successors, employees, agents, elected and appointed officers, and assigns.

15. Each of the Plaintiff’s and Federal Defendant’s undersigned representatives certifies that he or she is fully authorized to enter into and execute the terms and conditions of this

Stipulation, and do hereby agree to the terms herein.

16. The terms of this Stipulation shall become effective upon entry of an order by the

Court ratifying the Stipulation.

17. This Stipulation has no precedential value and shall not be used as evidence of such in any litigation or in representations before any forum or public setting.

Dated: 3 March 2016

IT IS SO ORDERED.

A

JAMES L. ROBART

United States District Judge

ANNETTE L. HAYES

Acting United States Attorney

BRIAN C. KIPNIS

Assistant United States Attorney 5220 United States Courthouse 700 Stewart Street Seattle, WA 98101-1671 Telephone: (206) 553-7970 Fax: (206) 553-4073

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U.S. Department of Justice Environment & Natural Resources Division

E-mail: brian.kipnis@usdoj.gov

JOHN C. CRUDEN

Assistant Attorney General SETH M. BARSKY, Section Chief

/s/ Carter (Coby) Howell CARTER HOWELL, Trial Attorney Wildlife & Marine Resources Section U.S. Department of Justice Environment & Natural Resources Division c/o U.S. Attorney’s Office 1000 SW Third Avenue Portland, OR 97204-2902

(503) 727-1023 / (503) 727-1117 (fx) Coby.howell@usdoj.gov s/ Stephen D. Mashuda

STEPHEN D. MASHUDA (WSB #36968)

JANETTE K. BRIMMER (WSB #41271)

Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104

(206) 343-7340 | Phone

(206) 343-1526 | Fax smashuda@earthjustice.org jbrimmer@earthjustice.org

Attorneys for Plaintiff, American Rivers

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was today served via the Court’s CM/ECF system on all counsel of record.

/s/ Carter (Coby) Howell

CARTER HOWELL

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